Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 CR 979 - Charles P. Kocoras, Judge.
Before CUDAHY and EASTERBROOK, Circuit Judges, and SWYGERT, Senior Circuit Judge.
EASTERBROOK, Circuit Judge.
John M. Murphy was an Associate Judge of the Circuit Court of Cook County from 1972 until 1984. He was indicted in 1983 and charged with accepting bribes to fix the outcome of hundreds of cases, from drunk driving to battery to felony theft. Some of the counts on which he was convicted grew out of contrived cases staged by the FBI and federal prosecutors as part of Operation Greylord, an investigation of the Cook County courts.
The charges spanned many years and many statutes. Part I of this opinion sets out the background. Part II addresses Murphy's challenge to Operation Greylord. Part III looks at Murphy's arguments under particular statutes, Part IV at the conduct of the trial, and Part V at the decision of the district judge not to recuse himself.
The evidence at trial, which we now view in the light most favorable to the prosecution, showed several categories of cases in which Murphy took bribes. We separate the evidence into several groups: traffic court, "hustling," fixed felony offenses, and the cases that were contrived as part of the investigation. We omit a great deal of the evidence and describe only enough to give the general picture. Some of the events we recount are pertinent to other Greylord cases still in litigation. Our statement of the evidence and the inferences the jury could draw about Murphy's conduct is not meant to prejudge those cases.
Traffic court. The Cook County courts are organized into divisions, and supervisory judges assign other judges to particular divisions or courtrooms. From 1972 to early 1981 Murphy was assigned to traffic court, which has courtrooms for major offenses (driving while intoxicated, leaving the scene of an accident, and so on) and minor offenses (such as running a red light). Judge Richard LeFevour was the Supervising Judge of traffic court; he had the authority to decide whether Murphy and other judges would hear major or minor cases.
Officer James LeFevour of the Chicago police, Richard LeFevour's cousin, was assigned to traffic court from 1969 through 1980. James LeFevour testified for the prosecution as part of an agreement under which the Government limited its charges against him to three tax offenses. He testified that beginning in 1975 he met regularly with Melvin Cantor, who would give him a list of his cases that day. James LeFevour would take the list to Judge Richard LeFevour; Judge LeFevour would assign Murphy to hear some of Cantor's cases. James LeFevour would present Murphy the list of Cantor's cases. Murphy then would find the defendants not guilty or sentence them to "supervision," an outcome defendants favored. Later in each day Cantor would give James LeFevour money to pass to Judge LeFevour and some for James to keep for a "tip."
Although Richard LeFevour kept the bribes for these cases, he put Murphy in a position to "earn" his own bribes. Richard LeFevour would assign to major cases, on a regular basis, only those judges who would "see" James LeFevour. Lawyers then would bribe some of the judges assigned to the major courtrooms. Murphy was in a major courtroom more often than most other judges.
Lawyers known as "miracle workers" occasionally met with James LeFevour and with Joseph Trunzo, another police officer assigned to traffic court. The lawyers would tell Officer LeFevour or Officer Trunzo which defendants they represented; the officers would pass the information to Murphy; after the defendant had prevailed, the lawyer would hand an envelope to the officer with $100 per case for Murphy and another $10 or so for the officer; the officer would pass the envelope to Murphy. Prosecutors testified that although they won as many as 90% of their major traffic cases against public defenders, they almost never won a case in which the defendants was represented by one of the "miracle workers."
The testimony at the trial of this case concerned unidentified cases in traffic court. But some plays stood out, even though the players were anonymous. A prosecutor recalled one drunk driving case in which the defendant was represented by Harry Kleper, a miracle worker. The arresting police officer testified that the defendant failed the usual roadside tests of drunkenness and admitted drinking beer before driving. The defendant took the stand and did not deny imbibing; she said only that the liquor did not affect her ability to drive. Under cross-examination she admitted "feeling" the beer; the prosecutor then asked: "And don't you think it is fair to say that you were under the influence of intoxicating liquor?", to which she replied, "Yes, I guess that is a fair thing to say." Judge Murphy threw up his hands and called a recess, turning to Kleper with the remark: "Counselor, I suggest you talk to your client." As Murphy left the bench, the prosecutor heard Murphy yell down the hall to the judges' chambers: "You won't believe this. The State's Attorney just got the defendant to admit she was drunk." A few minutes later Murphy reconvened the court. Kleper asked the defendant whether she was drunk; she said no. In closing argument the prosecutor stressed the defendant's admission. Kleper did not give a closing argument. Murphy ruled: "I still have a reasonable doubt. Not guilty."
Hustlers. In 1981 Judge LeFevour became Presiding Judge for Cook County's First Municipal District court, which has a general jurisdiction. Many of the branch courts had been frequented by "hustlers." "Hustlers" are lawyers who stand outside the courtroom and solicit business from the people about to enter. Ethical rules long have prohibited such solicitation, and every appearance form in Circuit Court contains a representation that solicitation did not occur. Hustling is a profitable business nonetheless, and people find ways to pursue the profits of illegitimate enterprise with the same vigor they devote to lawful activities.
The profit in hustling comes from the bail system in Illinois. A defendant required to post bail may do so by depositing 10% of the bail in cash. If the defendant is discharged, the cash deposit (less the clerk's handling fee) is returned. This payment, called the cash bond refund (CBR), also may be assigned to the defendant's lawyer as compensation for legal services. Assignment requires the approval of the court. Hustlers make their money by persuading defendants to hire them and assign the CBR, then persuading the judge to release the CBR to them.
Judge Thaddeus L. Kowalski, who presided over the court known as Branch 29 from June 1980 to March 1981, believed that hustlers cheated their clients at the same time as they violated ethical rules. Often the hustlers appeared as counsel only when the case was bound to be dismissed anyway, as they well knew. Their "representation" of the defendants simply diverted the CBRs from the defendants to the lawyers. Judge Kowalski addressed hustling in the most effective way - by eliminating its profitability. He refused to permit the hustlers to collect the CBRs. They soon deserted Branch 29. When Richard LeFevour became the presiding judge of the first district, Judge Kowalski explained to Judge LeFevour how he had cut down on hustling. Judge LeFevour praised Judge Kowalski and promptly transferred him from Branch 29 to the East Chicago Avenue Police Court, which handles criminal cases originating in the Cabrini Green housing project. Judge LeFevour replaced Kowalski with Murphy.
Hustlers flourished under Murphy, who routinely permitted them to collect the CBRs. The hustlers showed appropriate gratitude. Every month the lawyers, collectively known as the Hustlers Club, paid James LeFevour $2500. James kept $500 and gave the rest to Richard. (The sums were reduced for some months when the hustlers' take fell. Murphy was incapacitated by a broken ankle, and his replacement was apparently less compliant.) After a hustler made a certain amount, he paid an additional sum to the judge of the particular court. James LeFevour told Murphy of the Hustlers Club and Richard LeFevour's approval. Murphy told James LeFevour that he approved too.
Although Richard LeFevour kept the principal bribe, there were still rewards for Murphy. As at traffic court, Murphy was free to establish his own stable of bribegivers. The Chicago Bar Association (CBA) maintains a Lawyer Referral Service. This service screens lawyers and assigns them to branch courtrooms to be of service to unrepresented defendants. These lawyers are potential competitors of the hustlers, and Murphy apparently cultivated them as independent sources of revenue.
Arthur Cirignani participated in the CBA's program. (The evidence at trial casts no shadows on the integrity of the CBA itself.) From June 1980 through the end of 1983 he was assigned to a courtroom three to four times a month. Whenever he was assigned to Branch 29, he paid Judge Murphy to assign cases to him rather than to continue the proceedings and allow the hustlers to claim the CBRs. For example, on June 21, 1982, Cirignani visited Murphy first thing in the morning and informed Murphy that he was there as the bar's lawyer. Murphy referred thirteen cases to Cirignani that day and allowed Cirignani to collect CBRs totalling $1,010, a return Cirignani called "excellent." On June 22 Cirignani took $200 in cash to Murphy, who accepted the money without comment. Cirignani testified that he paid Murphy then and on other occasions to ensure referrals in the future.
Fixed cases. Murphy threw business to lawyers; he also threw cases. Cirignani, who testified under an arrangement that he would not be prosecuted if he told the truth, described one such case. Cirignani Arthur Best, charged with felony theft. The police had seized evidence from the grounds of Best's house under authority of a warrant, and Cirignani moved to suppress the evidence. On the day of the suppression hearing Cirignani visited Murphy's chambers before court began and while they were alone told Murphy that he had a "good" motion to suppress. Murphy promised to "take a look at it." Judge Murphy later granted the motion to suppress, giving no reasons. The prosecutor then dismissed the case against Best. Before leaving the courthouse Cirignani gave Murphy an envelope containing $300. Cirignani received a CBR of $1800 in the case, and the client also paid $700 directly. (As it turned out, Cirignani's success was short-lived. The Appellate Court of Illinois reversed. People v. Best, 97 Ill. App. 3d 1083, 424 N.E.2d 29, 53 Ill. Dec. 616 (1st Dist. 1981).)
Greylord cases. Most of the evidence about fixed cases was presented by witnesses who had concocted the cases for the purpose of the Greylord investigation. Terrence Hake, an agent of the FBI posing as a corrupt lawyer, would represent the defendants in ghost-written cases. Agents would file complaints and testify about made-up events.
In one case two agents of the FBI, posing as "Norman Johnson" and "John Stavros," claimed to have had a violent encounter in which Johnson injured Stavros. Hake represented Johnson, the "defendant." Wearing a tape recorder, Hake privately visited Judge Murphy's chambers on the morning the case was set for a hearing. He introduced himself as Johnson's lawyer and said he wanted a verdict of not guilty. Murphy replied: "I'll throw the fucker out the window." Hake mentioned dealings with Joseph Trunzo and suggested that Trunzo would make arrangements; Murphy said: "That's okay, everything's alright." Murphy found Johnson not guilty. But things were not well. After the trial Hake gave $300 to Officer Joseph Trunzo ($200 for Murphy, $100 for Joseph and his twin brother Jim). They did not deliver the $200 to Murphy; they apparently planned to fleece Hake (a novice at corruption) by keeping the money, leaving Hake to face an angry judge. Murphy told Hake the following week that he had not seen either Trunzo. A few days later Murphy visited traffic court, still the assignment of both Trunzos, looking for them. Joseph Trunzo then gave Murphy the $200 he had received from Hake, explaining to Murphy that "I got busy and forgot to call you." (In the other trials Joseph Trunzo kept Hake's money and Murphy did not get paid, but so far as the record shows Murphy did not know the money in these cases had been meant for him.)
Hake represented the "defendants" in several other cases fabricated by the FBI. The payoffs went more smoothly. On each occasion the "defendant" was discharged, and Hake paid Officer James LeFevour, apparently a more honest criminal than the brothers Trunzo. James LeFevour passed most of the money to Richard LeFevour and told Murphy that Judge LeFevour wanted verdicts of not guilty. Hake had some additional recorded ex parte conversations with Murphy. In one Hake conceded that his client was guilty but said he needed a verdict of not guilty; Murphy said "it'll be discharged that's all" and later acquitted the "defendant." During another meeting Murphy produced Hake's business card - a card given to James LeFevour on which Hake had written the names of cases he wanted dismissed. David Ries, another attorney and agent of the FBI, described two other concocted cases in which he represented "defendants" and paid a bribe through yet another police officer to obtain the desired disposition. See United States v Blackwood, 768 F.2d 131 (7th Cir. 1985), affirming that officer's conviction.
The outcome. The jury convicted Murphy on 24 of the 27 counts in the indictment. The counts involved four legal theories. Some counts charged violations of the mail fraud statute, 18 U.S.C. § 1341. The checks constituting the CBRs were mailed to the attorneys, and each mail fraud count was based on the mailing of one CBR. The "fraud" was one committed by Murphy on the people of Cook County, who lost his honest services. Some counts were based on the Hobbs Act, 18 U.S.C. § 1951(a), which prohibits extortion affecting interstate commerce. The extortion lay in the solicitation and receipt of the bribes. Some counts were based on the theory that Murphy aided and abetted others who violated the Hobbs Act. The remaining counts was based on the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d), which prohibits the operation of an "enterprise" in interstate commerce through a "pattern" (two or more events) of "racketeering" (the violation of specified state or federal laws). The "enterprise" here was the Cook County Circuit Court.
The district court imposed 24 concurrent sentences. The longest, ten years, are based on the RICO and Hobbs Act counts. The court did not impose a fine or a forfeiture.
Murphy attacks the convictions based on the Operation Greylord cases, which he depicts as frauds on the court. You cannot deprive the people of Cook County of honest services in such "cases," Murphy maintains, because they are not cases at all. The people had no right to any judicial services, honest or otherwise, in adjudicating put-up jobs, and so lost nothing from his conduct. He analogizes the situation to that of United States v. Archer, 486 F.2d 670 (2d Cir. 1973), in which the Second Circuit reversed a conviction when the Government had induced one party to place a phone call for the sole purpose of manufacturing the federal jurisdictional element of the crime.
Archer is a judicial reaction to activities the court thought overextended federal power. But this case is not Archer. The prosecutors did not move a state crime to a federal court by main force. Murphy's complaint is a more traditional objection to creative acts by prosecutors. He contends that there was no crime at all and that if there was a crime the prosecutors manufactured it.
These arguments can be made about any "sting" operation - indeed about any use of undercover agents. The agents who offered bribes to Members of the House and Senate in the "Abscam" sting were not trying to grease the skids for a real project or obtain an actual law. Agents who buy illegal drugs are not going to distribute them for profit. There is no "crime" in these cases, in the sense that the scheme cannot come to fruition, and the evils against which the laws are set cannot occur. Yet courts regularly sustain convictions based on these entrepreneurial efforts. E.g., United States v. Jannotti, 673 F.2d 578 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 73 L. Ed. 2d 1315, 102 S. Ct. 2906 (1982); Baucom v. Martin, 677 F.2d 1346 (11th Cir. 1982) (Wood, J.). The law forbids the extortion and the scheme to defraud, not just the completed fraud. United States v. Dial, 757 F.2d 163 (7th Cir. 1985); United States v. Lindsey, 736 F.2d 433, 436 (7th Cir. 1984); Jannotti, supra.
In Operation Greylord agents of the FBI took to the stand in the Circuit Court of Cook County and lied about their made-up cases. Perjury is a crime, and Murphy tells us that those who commit crimes themselves cannot prosecute others' crimes. But criminal proceedings are not designed to establish the relative equities among police and defendants. In many categories of cases it is necessary for the agents to commit acts that, standing by themselves, are criminal.
Bribery, like a wholesale transaction in drugs, is a secret act. Both parties to the bribe violate the law, just as both parties to the sale of drugs violate the law. It is commonplace for agents to take one side of a transaction in drugs. Because the crime leaves no complaining witness, active participation by the agents may be necessary to establish an effective case. The agents' acts merely appear ...